Jennifer_SFBA
05/30/06, 02:23 am
Good news… the Supreme Court of the United States denied certiorari in an appeal brought by the government in Barnes v. City of Cincinnati, a case which awarded a transsexual female employee damages for discriminatory behavior. Philecia Barnes, filed suit in 2003 in the U.S. District Court for the Southern District of Ohio, claiming sexual discrimination under Title VII of the Civil Rights Act. A jury ultimately agreed with Barnes, awarding $320,000 in damages. The verdict was later upheld by the 6th U.S. Circuit Court of Appeals.
While we in the transgendered community applaud the result, I question whether this is really what we want. Yes, in this case, we want another holding that Title VII applies to discrimination based on stereotyping, in the Barnes case - as set forth in Price Waterhouse v. Hopkins, a landmark sex discrimination case decided in 1989.
The question, raised in this column, is whether or not the DC9 are simply not interested in the pursuit of justice for all Americans, or, more simply do not want to venture into what may lead to a foundation for recognition of same sex marriage via the status of transsexuals. Or, not so simply, that the issue of recognition of sex status, now split with the 1st, 6th, and 9th Circuit Courts of Appeals supporting, and the 2nd, 7th, and 8th rejecting such recognition, is still not sufficient for the Supreme Court to weigh in and settle the matter.
The only transsexual case ever decided by the Supreme Court was the prisoner rights case of Farmer v. Brennan, decided in 1994. Since then, many Circuit Courts of Appeals have followed Farmer’s holding, regarding the humane medical treatment of inmates that are transsexuals. Unfortunately, the DC9’s interest seems to stop with those incarcerated transsexuals.
Nevertheless, the effort continues to bring a factually complete case before the Supreme Court to determine the legal status of transsexuals for other purposes, like marriage. Since most transsexuals are law abiding free citizens, it seems strange to this writer why transsexuals housed in our nation’s prisons are afforded the nation’s highest forum, while those hundreds of thousands of transsexuals who are involved in other types of litigation are not.
The argument from the conservative right against recognition is usually based on outdated scientific/medical information, religious bias dating back to the Middle Ages, and garden variety prejudice, or, just plain blissful ignorance (including the common law pre-existing the Middle Ages and civil law in Europe during the age of enlightenment).
For those readers who supported re-election of the current administration, the dice rolled in gambling your civil and human rights will soon come to fruition. You might wonder whether or not the new Court would have denied certiorari in the Barnes case. A conservative Court could, can, and will easily have granted the government’s petition and decided that Title VII does not protect transsexuals from sex based discrimination (placing the entire nation under the holding of Ulane v. Eastern Airlines).
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Alyson Meiselman is an attorney specializing in family and gender & sexuality law. This column is intended to be general legal information and readers are advised to contact a local attorney if they have a specific problem and seek specific advice for the jurisdiction in which the problem arose.
While we in the transgendered community applaud the result, I question whether this is really what we want. Yes, in this case, we want another holding that Title VII applies to discrimination based on stereotyping, in the Barnes case - as set forth in Price Waterhouse v. Hopkins, a landmark sex discrimination case decided in 1989.
The question, raised in this column, is whether or not the DC9 are simply not interested in the pursuit of justice for all Americans, or, more simply do not want to venture into what may lead to a foundation for recognition of same sex marriage via the status of transsexuals. Or, not so simply, that the issue of recognition of sex status, now split with the 1st, 6th, and 9th Circuit Courts of Appeals supporting, and the 2nd, 7th, and 8th rejecting such recognition, is still not sufficient for the Supreme Court to weigh in and settle the matter.
The only transsexual case ever decided by the Supreme Court was the prisoner rights case of Farmer v. Brennan, decided in 1994. Since then, many Circuit Courts of Appeals have followed Farmer’s holding, regarding the humane medical treatment of inmates that are transsexuals. Unfortunately, the DC9’s interest seems to stop with those incarcerated transsexuals.
Nevertheless, the effort continues to bring a factually complete case before the Supreme Court to determine the legal status of transsexuals for other purposes, like marriage. Since most transsexuals are law abiding free citizens, it seems strange to this writer why transsexuals housed in our nation’s prisons are afforded the nation’s highest forum, while those hundreds of thousands of transsexuals who are involved in other types of litigation are not.
The argument from the conservative right against recognition is usually based on outdated scientific/medical information, religious bias dating back to the Middle Ages, and garden variety prejudice, or, just plain blissful ignorance (including the common law pre-existing the Middle Ages and civil law in Europe during the age of enlightenment).
For those readers who supported re-election of the current administration, the dice rolled in gambling your civil and human rights will soon come to fruition. You might wonder whether or not the new Court would have denied certiorari in the Barnes case. A conservative Court could, can, and will easily have granted the government’s petition and decided that Title VII does not protect transsexuals from sex based discrimination (placing the entire nation under the holding of Ulane v. Eastern Airlines).
* * * * *
Alyson Meiselman is an attorney specializing in family and gender & sexuality law. This column is intended to be general legal information and readers are advised to contact a local attorney if they have a specific problem and seek specific advice for the jurisdiction in which the problem arose.